Funded by the Office for Women, NSW Department of Premier and Cabinet

Case Studies

Impact of workplace law changes on NSW workers: 2007 case studies

WHAT'S HAPPENED TO A 'FAIR GO'?

Over the past year, community legal centres across NSW have been sending information to the Inner City Legal Centre about clients who have been dismissed from their job or who have experienced other workplace problems such as discrimination. This information, which contains no identifying client information is analysed and recorded for statistical purposes.

Here are just a few examples of female clients who have been disadvantaged by the new laws.

EMPLOYMENT TERMINATION

1. An accounts manager worked for a timber manufacturer for 11 years. She arrived at work to discover a redundancy notice (effective immediately) in her pigeonhole. 'Operational requirements' was given as the reason for her termination. Later the client discovered someone had been employed to do her job. The client was paid all her outstanding entitlements.

Under WorkChoices, there is no remedy for an unfair dismissal for this client because there were fewer than 100 workers employed by the timber manufacturer. Since another worker was employed in the accounts manager's position after her termination, the redundancy in this case was a sham, given that the position was not redundant. The employer's action was in breach of the Australian taxation laws.

2. A 38-year old assistant-in-nursing worked for a Sydney nursing home for 18 years. She was made redundant involuntarily, being told by the manager that the termination was 'for operational reasons'. No other workers were dismissed. She did receive all her entitlements.

Under WorkChoices, there is no remedy for an unfair dismissal for this client because there were fewer than 100 employees employed by the nursing home. Also under the new laws, an employer does not have to demonstrate that a fair process is in place before retrenching staff.

3. An airline worker had worked for over four months. She was dismissed two days after a senior male employee made comments of a sexual nature to female staff, and the client told him to 'get lost'. The company refused to give her reasons for the dismissal, saying only that she was still on probation. The company had extended the client's probation for a further 3 months and then terminated her employment. The client's dream was to work as a flight attendant.

Under WorkChoices, there was no remedy for unfair dismissal because the client was on probation and she had worked for the company for less than six months. The client was advised to make a discrimination complaint about the sexual harassment to the Human Rights and Equal Opportunity Commission (HREOC) or the Anti-Discrimination Board of NSW (ADB).

4. A 41-year-old RSL club worker in a rural town, with over seven years service, passed on a caricature (of a clown) of the general manager of the club to another worker. She wasn't at all involved in the drawing but was sacked for 'gross misconduct'. The club refused to pay the client all her outstanding entitlements, including long service leave.

Under WorkChoices, there was no unfair dismissal because the Club employed fewer than 100 employees. Since the club wrote 'gross misconduct' on the client's separation certificate, Centrelink imposed an 8- week payment penalty. The allegation of 'gross misconduct' also created difficulties for the client in getting another job. The client was advised to start proceedings for the unpaid entitlements in the local court.

5. A 23-year-old waitress had worked as a casual in a small cafe for over two years, averaging 35 hours/week. After she told her employer she was pregnant in March 2006, the employer started reducing the client's hours so that by August she was only working 20 hours/week. Because of the perceived mistreatment by her employer, the waitress resigned and intended leaving on 31 August 2006. On 17 August, the employer told her "you are retiring today" and issued her with a separation certificate providing 'pregnancy' as the reason for termination.

As the employer was not a corporation, the client was advised that she could either file an unfair dismissal claim in the NSW Industrial Relations Commission or file a complaint in the NSW Anti-Discrimination Board on the ground of pregnancy discrimination. The outcome of the matter is unknown.

Although this client was not directly affected by the WorkChoices legislation, this case study is an example of the attitude of some employers to pregnancy in employment. This client was able to consider unfair dismissal proceedings but if her employer had been a corporation, the WorkChoices legislation would have applied and she would not have had this option (although she would have been able to pursue an unlawful claim).

AUSTRALIAN WORKPLACE AGREEMENTS

1. A client was offered an Australian workplace agreement (AWA) where she would be paid $118 for a six-hour shift. Under her award the client was entitled to $181 for the six-hour shift. The AWA also only provided seven days for sick and carers leave per year as opposed to 10 days under the award.

2. A client was a sales representative who worked for a manufacturing company for more than 2 years. The client and 24 other sales staff were covered by the Commercial Travellers (State) Award and had a written agreement covering bonuses and commission. There were subsequent discussions between the manager and all the staff to change this agreement. However, when the sales staff received the new written agreement, the document also contained other conditions that had never been discussed or agreed to. All sales staff refused to sign this document. The company then withheld payment of all staff bonuses/commission for the July/September quarter.

Under duress, all the client's work colleagues then signed the agreement but the client refused. The company continued to withhold the client's unpaid bonuses and commission, which were due for payment in September. The client was advised to lodge a complaint with Department of Employment and Workplace Relations because the employer was in breach of the award provisions by withholding the client's bonuses and commission. This award provision is protected under the WorkChoices legislation. Maximum penalty under the Workplace Relations Act for breaching a NAPSA (Notional Agreement Preserving State Award) is 300 penalty units ($33,000).

3. A 52-year-old client had been employed on a casual basis for five years when her employer gave her an AWA to sign. The AWA changed her employment to part-time, dropped her wages from $17.80 to $12.75 per hour and provided only three weeks' annual leave. Under enormous pressure from the employer to sign the AWA, the client subsequently resigned.

The views expressed herein do not necessarily reflect the views of the Office for Women, NSW Department of Premier and Cabinet